DePolo v. Board of Supervisors Tredyffrin Township
2016 U.S. App. LEXIS 15996
| 3rd Cir. | 2016Background
- Jeffrey DePolo, a federally licensed amateur radio operator, sought a permit to erect a 180-foot antenna tower on his R1/2 residential lot; the Township zoning ordinance limited building height to 35 feet.
- The zoning officer denied the 180-foot permit but offered a 65-foot tower permit; DePolo rejected the offer and appealed to the Township Zoning Hearing Board of Appeals (ZHBA) while also filing a variance request.
- After five days of hearings, the ZHBA granted only a 65-foot variance, finding a 180-foot lattice tower incompatible with the residential neighborhood and posing visual and safety impacts; the ZHBA concluded the ordinance could be varied and was not invalid under PRB-1.
- DePolo did not pursue the statutorily available appeal to the Chester County Court of Common Pleas within 30 days; instead he filed suit in federal district court claiming federal preemption under 47 C.F.R. § 97.15(b) and FCC PRB-1.
- The District Court dismissed DePolo’s federal complaint under Rule 12(b)(6), concluding the 65-foot offer was a reasonable accommodation and the ordinance was not preempted; the Third Circuit affirmed, holding DePolo’s failure to appeal the ZHBA decision rendered it final and entitled to preclusive effect.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PRB-1/47 C.F.R. § 97.15(b) preempts the township height restriction as enacted or as applied | DePolo: PRB-1 requires reasonable accommodation of amateur communications and local limits here preclude necessary 180-ft antenna | Township/ZHBA: PRB-1 allows local regulation; ZHBA’s 65-ft variance reasonably accommodates; ordinance not preempted | Court: Not reached on merits—ZHBA decision final and preclusive because DePolo failed to appeal to state court |
| Whether the ZHBA’s 65-ft variance (and factual findings) may be relitigated in federal court | DePolo: Federal forum appropriate to resolve preemption and PRB-1 questions | Township/ZHBA: ZHBA issued final administrative decision; state appeal required before federal review | Held: ZHBA’s final decision had preclusive effect in federal court because DePolo did not timely appeal to state court |
| Whether DePolo had a full and fair opportunity to litigate his claims | DePolo: Contends ZHBA record did not vindicate federal preemption claim | Township/ZHBA: ZHBA conducted extensive hearings and resolved factual and legal issues; state appellate review was available | Held: Opportunity was adequate; availability of state appellate review means claim preclusion applies |
| Whether District Court could dismiss under Rule 12(b)(6) before state appeal | DePolo: Dismissal on pleading grounds was improper; merits should be decided | Township/ZHBA: Procedural posture barred federal review; dismissal appropriate | Held: Affirmed dismissal because of preclusive effect of ZHBA final judgment after DePolo failed to pursue state-court appeal |
Key Cases Cited
- Pentel v. City of Mendota Heights, 13 F.3d 1261 (8th Cir. 1994) (discusses interplay of local zoning and amateur radio rights under PRB-1)
- Izzo v. Borough of River Edge, 843 F.2d 765 (3d Cir. 1988) (abstention unnecessary; federal courts may adjudicate land-use claims involving PRB-1)
- Crossroads Cogeneration Corp. v. Orange & Rockland Utils., Inc., 159 F.3d 129 (3d Cir. 1998) (state administrative factual findings are entitled to preclusive effect in federal court)
- Ridley Sch. Dist. v. M.R., 680 F.3d 260 (3d Cir. 2012) (discusses preclusive effect of administrative decisions)
- Caver v. City of Trenton, 420 F.3d 243 (3d Cir. 2005) (decisions of state administrative agencies reviewed by state courts are given preclusive effect in federal courts)
- Schmidt v. Skolas, 770 F.3d 241 (3d Cir. 2014) (standards for reviewing district court dismissals under Rule 12(b)(6))